Colorado § 8-70-140 - Employment does not include - nonprofit organizations - governmental entities - Indian tribes.

§ 8-70-140. Employment does not include - nonprofit organizations - governmental entities - Indian tribes.

(1) For the purposes of sections 8-70-118, 8-70-119, and 8-70-125.5, "employment" does not include services performed:

(a) In the employ of a church or a convention or association of churches or in the employ of an organization that is operated primarily for religious purposes and that is operated, supervised, controlled, or principally supported by a church or convention or association of churches or in the employ of an elementary or secondary school that is operated primarily for religious purposes; or

(b) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order; or

(c) In the employ of a governmental entity referred to in section 8-70-119 or an Indian tribe referred to in section 8-70-125.5 if such service is performed by an individual in the exercise of such individual's duties:

(I) As an elected official;

(II) As a member of a legislative body or a member of the judiciary of a state or political subdivision thereof, or of an Indian tribe;

(III) As a member of the state National Guard or Air National Guard;

(IV) As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency;

(V) In a position that, pursuant to the laws of this state or Indian tribal law, is designated as a major, nontenured policymaking or advisory position, or a policymaking or advisory position the performance of the duties of which ordinarily does not require more than eight hours per week;

(VI) As an election official or election worker if the amount of remuneration received by the individual during the calendar year for services as an election official or election worker is less than one thousand dollars; or

(d) By an individual receiving rehabilitation or remunerative work in a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age, physical disability, or intellectual and developmental disability, or injury or of providing remunerative work for individuals who, because of their impaired abilities, cannot be readily absorbed in the competitive labor market; or

(e) By an individual receiving work relief or work training as part of an unemployment work relief or work training program assisted or financed in whole or in part by public funds or by an Indian tribe; or

(f) Prior to January 1, 1978, for a hospital in a state prison or other state correctional institution by an inmate of the prison or correctional institution and, after December 31, 1977, by an inmate of a custodial or penal institution.

Source: L. 90: Entire section added, p. 598, § 3, effective April 3. L. 98: (1)(a) and IP(1)(c) amended and (1)(c)(VI) added, p. 69, § 4, effective March 23; IP(1)(c) and (1)(c)(V) amended and (1)(c)(VI) added, p. 583, § 18, effective April 30. L. 2001: IP(1), IP(1)(c), (1)(c)(II), (1)(c)(V), and (1)(e) amended, p. 1547, § 3, effective December 21, 2000. L. 2017: (1)(d) amended, (HB 17-1046), ch. 50, p. 155, § 1, effective March 16.

Editor's note: The federal "Consolidated Appropriations Act, 2001", Pub.L. 106-554, which became law on December 21, 2000, required all states to amend their laws regarding how Indian tribes are treated for unemployment insurance purposes. The 2001 act amending the introductory portions to subsections (1) and (1)(c) and subsections (1)(c)(II), (1)(c)(V), and (1)(e) provided for an effective date of December 21, 2000. (See L. 2001, p. 1550.)

ANNOTATION

Annotator's note. Since the substantive provisions of this section are identical to former § 8-70-103 (10)(g), relevant cases construing that provision have been included under this section.

What constitutes "church". A religious organization which does not constitute a distinct religious denomination or mode of worship is not a "church" for purposes of subsection (10)(g)(I). Young Life v. Division of Emp. & Training, 650 P.2d 515 (Colo. 1982) (decided prior to 1982 amendment of subsection (10)(g)(I)).

Religious purposes exemption. Exemption to the unemployment compensation law for an organization that operates primarily for religious purposes is not construed as narrowly as traditional tax exemption statutes and should not be lightly granted. This exemption does not involve the determination of religious motivations and should be applied only if the religious influence is pervasive in the organization that applies for the exemption, not the organization that founded the organization applying for the exemption. Prince-Walker v. Indus. Claim App. Office, 870 P.2d 588 (Colo. App. 1993), aff'd sub nom. Samaritan Institute v. Prince-Walker, 883 P.2d 3 (Colo. 1994).

An employer formerly supported by a church nor dependent on a church or an association of churches for its continued operation is not exempt under the religious purposes exemption in this section. A Child's Touch v. Indus. Claim Appeals Office, 2015 COA 182, 411 P.3d 990.

The entity did not engage in religious activity where the entity's primary activity was to provide administrative services for centers that provide counseling. Pastoral counseling provided by centers in another state was not sufficient to support a claim of religious activity. Samaritan Inst. v. Prince-Walker, 883 P.2d 3 (Colo. 1994).

Because work and activities of store affiliated with an organization of churches are secular in nature, primary purpose of the activity is not religious and store is not exempt from the definition of "employment". Harbert v. Indus. Claim Appeals Office, 2012 COA 23, 272 P.3d 1190.

Administrative position within work-relief program disqualified. An employee occupying an administrative position within a work-relief program financed wholly by public funds is disqualified from the receipt of unemployment compensation benefits by subsection (10)(g)(V). Hernandes v. Indus. Comm'n, 659 P.2d 58 (Colo. App. 1983).

A child care facility that offers day care, preschool, and kindergarten, but does not teach any higher grades, is not an "elementary school" for purposes of the exemption in subsection (1)(a). A Child's Touch v. Indus. Claim Appeals Office, 2015 COA 182, 411 P.3d 990.